from the you-have-absolutely-no-credibility dept

Not too surprisingly, the broadband industry isn't too happy about the White House's surprise announcement that it appears to have grown a spine and is ready to go to war over reclassifying ISPs under Title II to protect net neutrality. ISPs have repeatedly made it clear that they'd sue any effort to impose real rules, and you could barely hear oneself over the noise of deep-pocketed carriers putting their legal teams, PR firms, and myriad of paid astroturfers, policy mavens, sockpuppets, fauxcademics and think tankers on high alert. The response from this status quo chorus is about what you'd expect, with most of them breathlessly insisting that Title II will kill puppies, ruin your nice dress shirt, totally disrupt your brunch plans, and destroy the Internet as we know it.

Verizon, for one, offered a fairly predictable response, insisting that Title II would destroy the Internet as we know it. To hear Verizon tell it, Title II simply wouldn't survive a legal challenge (pro tip: to avoid a legal challenge, how about you don't sue?):

"Reclassification under Title II, which for the first time would apply 1930s-era utility regulation to the Internet, would be a radical reversal of course that would in and of itself threaten great harm to an open Internet, competition and innovation. That course will likely also face strong legal challenges and would likely not stand up in court. Moreover, this approach would be gratuitous. As all major broadband providers and their trade groups have conceded, the FCC already has sufficient authority under Section 706 to adopt rules that address any practices that threaten harm to consumers or competition, including authority to prohibit ‘paid prioritization.’ For effective, enforceable, legally sustainable net neutrality rules, the Commission should look to Section 706."

Amusingly, every time Verizon speaks on this issue they not only forget to mention that Title II governs huge swaths of their infrastructure with absolutely no ill effects (and actually some tax benefits for Verizon), but that they were the company that decided to sue over the very Section 706 rules they now profess to support. AT&T similarly ponied up a statement that first pretends that turning telecom regulators into spineless wimps is some kind of bi-partisan miracle accomplishment, then proceeds to insist that relying on a broken, bickering Congress flush with AT&T cash is the only way to move forward:

"Light-touch regulation has encouraged levels of investment unprecedented by any industry and spawned incredible innovation. Today’s action puts all of that at risk – and puts it at risk not to remedy any specific harm that has occurred. Instead, this action is designed to deal with a hypothetical problem posed by certain political groups whose objective all along has been to bring about government control of the Internet. The White House is proposing to put the Internet and our economy at risk as a result of such political pressures."

And by "political pressure," AT&T means the four million people who wrote the FCC annoyed at the fact that AT&T now gets to literally write and purchase all telecom laws. By "government control of the Internet" AT&T means regulators that actually do their job, and by "unprecedented" levels of investment AT&T's referring of course to their fixed-line network investment CAPEX that's been dropping like a stone despite fifteen years of broadband industry deregulation.

"Comcast and cable companies (along with the telcos) have led the broadband revolution, being the first to roll out America’s fastest broadband speeds across the country. As the White House itself acknowledged in its broadband report in 2013, this only happened because we were not subject to the intrusive regulatory regime designed for a different era."

"The FCC is an independent agency and it should exercise independent judgment in crafting new rules. This is truly a matter that belongs in Congress and only Congress should make a policy change of this magnitude. Congress can easily unravel the legal and jurisdictional knot that has tied up the FCC in crafting sustainable open Internet rules, without resorting to rules of the rotary-dial phone era. We urge Congress to swiftly exercise leadership of this important issue."

Because when you think about Congress, "easy," "swift," and "leadership" are certainly the very first words that jump to mind. As we've noted quite a few times now, in the absence of meaningful broadband competition (something that's not getting fixed anytime soon), Title II with forbearance is the only sensible way forward if we want neutrality rules that not only protect consumers from aggressive duopolists, but help prevent future iterations of the FCC from over-reaching. Most of the ISP claims about the impact on investment are the same tired talking points they've trotted out for every cocktail party and policy issue for the last thirty years, and they're going to need a new repertoire of scary bogeymen if they hope to keep the latest chapter in the net neutrality saga truly entertaining.

from the say-what-now? dept

As you've probably heard, the Republicans decisively took control over Congress in the election on Tuesday, and are now strategizing on exactly what plan they'll choose to try not to mess things up too badly by the time the 2016 elections come around. The Washington Post has a short segment on the "quick votes" the GOP is planning for January to show that rather than blocking everything, it can actually pass some stuff -- including "fast track" legislation on trade agreements:

With the 2016 presidential campaign already looming large, McConnell (Ky.) and Boehner (Ohio) are both eager to shed the party’s image as an unruly collection of obstructionists and far-right ideologues.

The remedy, they have decided: Act quickly to send President Obama bills with bipartisan support to fast-track international trade agreements, repeal an unpopular tax on medical devices and approve the Keystone XL pipeline.

We've talked about this "Fast Track" authority for years (it's also referred to as "Trade Promotion Authority"). The issue is that, under the Constitution, Congress and not the executive branch, has the sole power "to regulate commerce with foreign nations." The executive branch has always been able to negotiate agreements, but it's Congress that has the power to regulate. "Fast Track" authority or Trade Promotion Authority is effectively Congress handing that right over to the executive branch, by saying that the only thing it can do when brought a trade agreement is vote up or down on the whole thing, rather than actually look at the details of the agreement and send the USTR back to fix the problematic parts.

You can understand why the USTR and the administration want the fast track to go, because it means they can actually promise things during negotiations that are more difficult to promise without that power. But it does seem very, very odd that a Republican Congress that seems to constantly complain about too much power in the executive branch, seems to have no problem whatsoever abdicating its Constitutional powers to that very same executive branch on major trade agreements that could reshape regulations worldwide.

Part of the problem, of course, is that people have been told that this is about "free trade" agreements -- and Republicans claim to be in support of free trade. But that's wrong. The big agreements, like the TPP and TTIP/TAFTA are not about "free trade" for the most part. Most tariff barriers have been chipped away for years. These agreements are about regulations and locking in certain regulations to limit the sovereignty of various nations to pass their own regulations. It's just protectionism in a different colored coat, dressed up to look like free trade -- complete with a dollop of extra sovereignty for corporations. Thus, it seems very odd that a Republican controlled Congress -- one that insists it's all about the Constitution -- has decided that it's first order of business is to give up one of Congress' main constitutional powers to an administration controlled by the opposing party.

from the bye-bye dept

We've heard some mumbling about one of the main reasons that the CIA has been dragging its feet on declassifying the executive summary of the CIA torture report that the Senate Intelligence Committee put together: it knows there's a decent chance that the Republicans will win the Senate next week, and suddenly the report may disappear from view. As you may recall, the Intelligence Committee (with support from GOP Senators) voted to declassify the 480 page executive summary of the 6,300 page report (which the Senate spent $40 million putting together). Multiple leaks concerning the report have suggested that it's devastating and details how terrible the CIA's torture program was, how it was completely ineffective and how the CIA lied about it all.

But most of the support for releasing the report is coming from the Democrats on the Senate Intelligence Committee, led by Dianne Feinstein (who sides with the NSA on plenty of stuff, but is more willing to challenge the CIA). But if the Republicans take the Senate next week, then the chair of the Senate Intelligence Committee will likely shift to Senator Richard Burr, who has made it quite clear that he's on the CIA's team and against the public interest.

"I personally don't
believe that anything that goes on in the intelligence committee should ever be
discussed publicly," Burr told reporters in March. "If I had my way,
with the exception of nominees, there would never be a public intelligence
hearing."

It's also expected that Burr will try to muzzle Ron Wyden and Mark Udall (if Udall is re-elected, which is iffy at this point):

If Burr takes over as chair, he could easily sideline the committee's
vocal civil libertarian bloc led by Ron Wyden (D-Ore.), and bolstered by Mark
Udall (D-Colo.) and Martin Heinrich (D-N.M.), two senators who've called for
Brennan's resignation.

Udall, in particular, drew blunt criticisms from Burr earlier
this year for disclosing the existence of an internal CIA review of the
detention and interrogation program that Democrats believe vindicates their own
study.

"I think Mark did make some public releases that were
committee-sensitive information, but that's for the committee internally to
handle," Burr told reporters in March. "My concern is that
the release of information could potentially cause the losses of life to
Americans. That to me, is a threshold that should be addressed."

As for the torture report itself, Burr has already said that the report is inaccurate and he's against it being released in any form. When a group of religious leaders asked him to support releasing the report, Burr told them he didn't think the report was accurate:

Last year, Burr drew criticism from more than 190 North Carolina religious leaders, including Christians, Jews, Quakers, and Muslims, for opposing the release of the Senate's post-9/11 torture report.

"The U.S. does not condone torture, but torture has been done by our citizens and in our country's name," reads a letter the religious leaders sent Burr. "We are writing to you as fellow people of faith to support the release of the ... report."

Disappointing the religious groups, Burr responded in a letter saying he opposed making the report public due to factual inaccuracies contained within the report. "I believe the American public should be provided with reports that are based on accurate facts," he said.

Given all of this, if the GOP does win, it seems like the only way the public may ever see the details is if someone steps up and leaks the damn thing.

from the just-in-time-for--halloween dept

In September, both Apple and Google announced plans to encrypt information on iOS and Android devices by default. Almost immediately, there was a collective freakout by law enforcement types. But, try as they might, these law enforcement folks couldn't paint any realistic scenario of where this would be a serious problem. Sure, they conjured up scenarios, but upon inspection they pretty much all fell apart. Instead, what was clear was that encryption could protect users from people copying information off of phones without permission, and, in fact, the FBI itself recommends you encrypt the data on your phone.

But it didn't stop FBI director James Comey from ignoring the advice of his own agency and pushing for a new law that would create back doors (he called them front doors, but when asked to explain the difference, he admitted that he wasn't "smart enough" to understand the distinction) in such encryption.

FBI and Justice Department officials met with House staffers this week for a classified briefing on how encryption is hurting police investigations, according to staffers familiar with the meeting.
The briefing included Democratic and Republican aides for the House Judiciary and Intelligence Committees, the staffers said. The meeting was held in a classified room, and aides are forbidden from revealing what was discussed.

It's almost guaranteed that someone will introduce some legislation, written primarily by the FBI, pushing for this (such a bill is almost certainly already sitting in some DOJ bureaucrat's desk drawer, so they just need to dot some i's, cross some t's and come up with a silly acronym name for the bill). So far, many in Congress have been outspoken against such a law, but never underestimate the ability of the FBI to mislead Congress with some FUD, leading to all sorts of scare stories about how we need this or we're all going to die.

from the and-they-blame-themselves dept

Hating on Congress is basically a national past time here in the US. Other than a brief moment of probably misguided solidarity after September 11th, the public's view towards Congress tends to be pretty negative, and it's been getting worse lately. Here's a historical look from Gallup at the public's approval ratings of Congress.

Esquire sent Mark Warren into Congress, initially to ask as many elected officials as possible "why they are so bad at their jobs," but he noted that he came out of it much more sympathetic to Congress, because, it appears just about everyone in Congress seems to hate Congress too, and it's not because they literally dislike each other -- but, in part, because they have to appear to dislike each other for the sake of insanely gerrymandered districts that they brought upon themselves. Well, except Ted Cruz. It appears that pretty much everyone in Congress, no matter which house or party, really dislikes Cruz.

Reading through the article, you begin to realize just how pitiful Congress really is.

What's interesting is how many seem to blame gerrymandering and redistricting for the problems of Congress, even though those in power did the redistricting on purpose to try to keep themselves in power. But it appears that people in Congress are now (finally) realizing the problematic consequences:

"You know, if I had a magic wand, one thing I would love to change—which you can't do unless you're king—is the redistricting process by which our boundaries are drawn," says Republican Aaron Schock of Illinois. "Because what has happened over the decades is he who controls the mapmaking process, you know, creates hyperpartisan districts. And you get more and more members who come out here and say, 'Gee, I know that I want to accomplish something on this issue. I want to take action on this issue, but the base of my district is so far to the right or to the left it makes it difficult for us to negotiate to the center.' But whether you're the most conservative member or you're the most liberal member, if you have half a brain, you recognize you're not going to get everything, and that any successful legislation requires the art of negotiation."

[....]

"When you have these one-party districts, the only election is in the primary, and the winner of the primary will be the one who is closer to the views of the narrowest base," says Angus King, Independent senator from Maine. "You can't be moderate. Who votes in primaries? You have a 10 percent turnout in a primary election in Georgia, and Republicans are 30 percent of the population. So 10 percent of 30 percent—that's 3 percent of the population voting to choose the nominee, and then if it's a multiperson race, and the winner gets 35 percent, that's one third of 3 percent—1 percent of the population chooses the nominee, who in a gerrymandered district will be the eventual member of Congress. That is bizarre, and it has completely polarized Congress. In the primary system that we have now, there is no upside for a Republican to be reasonable. I have a friend who is a very conservative senator, and he faced a primary this year, and I said, 'Good Lord, man, what are they gonna charge you with?' And he said: 'Being reasonable.' "

"Our Venn diagram," says Derek Kilmer, Democrat of Washington State, "is two circles, miles apart. Just after we got here, a group of us, Democrats and Republicans, were at a burger joint talking, and after about forty-five minutes, I said, 'We have to be able to get our act together and figure some of these things out. And across the table, one of my colleagues said, 'Derek, I like you, but you have to understand that I won my seat by defeating a Republican incumbent in my primary, and I campaigned against him for not being conservative enough. The first vote I cast when I got here was against John Boehner for Speaker, and I put out a press release that I had voted against him because he was too compromising. I like you, but I have zero interest in compromising with you or anybody else. My constituents didn't send me here to work with you; they sent me here to stop you.' I left there and called my wife and said, 'Oh, my God!' "

Combine that with the fact that they only get attention when there's conflict, rather than when they actually accomplish something, and guess what you get?

But all the same, the great majority of members interviewed said that the most rewarding work they ever did in Congress was in finding points of agreement with a congressman or senator from the other party, working to forge legislation that bridged the usual divides. "But nobody cares about that stuff," says Republican congressman Morgan Griffith from Virginia. " 'News flash: People are getting along, compromising, doing their jobs like adults' doesn't have the sizzle of conflict that the media demands in order to hold your interest. I have good relationships with several Democrats, and last year Diana DeGette [Democrat of Colorado], Gene Green [Democrat of Texas], and I introduced an important compounding-pharmacy bill to help prevent disease outbreaks. It really matters. And gets very little attention."

And of course, all of it has to do with "red team/blue team" crap, rather than any actual points of agreement or disagreement. There's a story from Democratic Senator Chris Coons, in which he talks about a conversation, back in 2011, with Republican Senator Marc Rubio, discussing the upcoming 2012 presidential election, in which both Senators admit to never bothering to have read the candidates' economic plans.

And, of course, the other big issue: money in politics. As we've discussed in the past, so many people look upon lobbying and such as a form of bribery, but the reality is often the opposite. It's almost a kind of extortion by politicians on industry, because they constantly need money for elections. So they do things designed to kick up controversy solely to get big interests to donate to their campaigns. And that often requires extreme positions that generate a lot of anger.

These snippets are just a bit of what's in the article. There's a lot more, including some people willing to name names (beyond just Ted Cruz) of the people they hate, and who else they blame. It's worthwhile reading.

Frankly, people have been complaining about Congress pretty much forever -- so I always try to take some of the "it's worse now" stories with a grain of "mythical nostalgia" salt. At the same time, gridlock in Congress has some benefits in blocking really bad regulations from passing. But it does seem problematic when important things can't get done, and it's all based on the color of your team and how to best raise money through conflict. It certainly doesn't seem like a good way to run a country.

from the you're-doing-it-wrong dept

So, as you probably heard last week, JP Morgan revealed more details of how it had been hacked, noting that the number of households impacted shot up to 76 million, thus impacting a pretty large percentage of Americans. The hack involved getting access to customer names, addresses, phone numbers and emails. It doesn't appear to have gotten anything else, but that's plenty of information to run some sophisticated phishing attacks that could lead to some serious problems. It's expected that the fallout from this could be quite long lasting.

Almost immediately, politicians leapt into action... but not in any good way. They're cynically using this as an excuse to push questionable cybersecurity legislation. Specifically, Senator Angus King used it to push CISA, a bill that actually undermines privacy, rather than protect it, by giving companies incentives to share info more freely, opening up greater opportunities for leaks and breaches. CISA gives those companies a blanket get-out-of-jail-free card by taking away any liability in sharing such info.

What no one explains is how something like CISA would actually have helped stop the JP Morgan hack. That's because it wouldn't have helped. Congressional supporters of cybersecurity legislation keep playing the "something must be done!" card, without ever bothering to explain how the something (CISA) will actually help. They just make vague promises that by somehow letting companies share info without liability, we'll magically all be better protected. Given the recent revelations about how government has regularly abused access to information, it's hard to accept the "just trust us" explanation for why companies should just hand over more information.

Even worse is that King went for the FUD-based "cyber Pearl Harbor" claim -- one that's been trotted out regularly, usually by intelligence community folks who just want access to your data, when the reality is that even James Clapper has admitted that there's little real chance of such a thing happened. But that doesn't stop King:

“Congress must work to pass legislation that will improve our capabilities and protect us against more attacks like these,” King added. “The next Pearl Harbor will be cyber, and shame on us if we're not prepared for it.”

Okay, sure. Shame on us if we're not prepared, but how will this law help us prepare for it? This is a question that no one in Congress seems willing to answer. They just insist we have to "do something."

King wasn't the only one:

Sen. Ed Markey called the hack “yet another example of how Americans’ most sensitive personal information is in danger.”

"It is time to pass legislation to protect Americans against these massive data breaches,” he added.

Rep. Yvette Clarke tweeted that the U.S. “must keep up on cybersecurity.”

Right, but again, how will the proposed law actually help? The problem is that no one answers because the truth is that it's unlikely to actually help keep companies and your data secure, though it might just make it easier for the intelligence community to get their hands on your data.

from the but-still-some-want-to-dismiss-it dept

If you can't see the image, it shows 303,099 calls made to Congress, 2,167,092 emails sent to Congress, and another 722,364 comments filed with the FCC. If you want to file comments with the FCC (you can read ours, if you'd like a sample) I recommend using EFF's DearFCC.org website.

What's amazing is how quick some folks have been to try to dismiss this massively successful effort. The most hilarious of all has to be Newsweek (the same publication that recently outed the wrong Satoshi Nakamoto as the "creator" of Bitcoin), whose Lauren Walker seemed so anxious to slam the protests as meaningless that she wrote a hilariously wrong article suggesting no one really participated in the protests, and that even the activists are conceding that net neutrality is dead.

Walker uses the weak premise that so many cynical tech press folks have used in the past few years: if an online protest doesn't match the astounding numbers from the giant anti-SOPA/PIPA internet "blackout," then clearly it's a failure. That's a dumb hacky premise, but hacky reporters keep jumping on it. Even worse, however, is that (beyond misquoting Fight for the Future's Evan Greer), Walker insists that the protest fizzled because very few sites took part, and those that did probably didn't drive anyone to do anything. She reports none of the numbers above, and totally incorrectly claims that just 76 websites participated. The number was actually more than 10,000. Reporting!

Either way, the effort yesterday has to be seen as a huge success in driving awareness on the issue and also in letting DC know that the public really cares about this issue. And, now, we wait to see if the FCC will actually listen to those pleas.

from the only-the-police-can-be-militarized dept

We've been writing an awful lot lately about the militarization of police, but apparently some in Congress want to make sure that the American public can't protect themselves from a militarized police. Rep. Mike Honda (currently facing a reasonably strong challenger for election this fall) has introduced a bizarre bill that would make it a crime for civilians to buy or own body armor. The bill HR 5344 is unlikely to go anywhere, but violating the bill, if it did become law, would be punishable with up to ten years in prison. Yes, TEN years. For merely owning body armor.

Honda claims that the bill is designed to stop "armored assailants" whom he claims are "a trend" in recent years. Perhaps there wouldn't be so much armor floating around out there if we weren't distributing it to so many civilian police forces... Not surprisingly, the very same police who have been getting much of this armor are very much in favor of making sure no one else gets it:

Honda said it has been endorsed by law enforcement organizations including the California State Sheriffs' Association, the Fraternal Order of Police and the Peace Officers Research Association of California, according to Honda.

Santa Clara County's District Attorney Jeff Rosen and Sheriff Laurie Smith and Alameda County District Attorney Nancy O'Malley and Sheriff Gregory Ahern also attended today's news conference, held at the Santa Clara County Sheriff's Office in San Jose.

That all sounds great. But when you read stories about police shooting unarmed teenagers, pointing guns at protesters and reporters, even threatening to kill or shoot them, isn't there at least a reasonable argument that people who are doing perfectly legal things might want to protect themselves from out of control, militarized police officers too? Owning a gun is perfectly legal, but owning a "ballistic resistant" shield gets you 10 years in jail?

from the those-bad-ideas-are-all-YOURS,-Judge-Bates dept

A few weeks ago, former FISC judge John Bates (now helming the Administrative Office of the US Courts) sent a letter to the intelligence oversight committees arguing that the Senate's USA Freedom Act would do too much damage to the NSA and the FISA Court. Bates feels the toothless bill passed by the House would be a much better fit for the FISA Court.

First, on the informational point, Judge Bates offers no evidence in support of his claim that allowing a security cleared outside amicus to participate before the FISA Court will somehow affect the government’s duty of candor to the tribunal, or otherwise disrupt the (apparently quite congenial) relationship between the FISC and the relevant government stakeholders. Indeed, Congress has already provided for security cleared private counsel to participate in FISA Court proceedings in the contexts of applications under section 215 of the USA PATRIOT Act and section 702 of FISA (as amended by the FISA Amendments Act of 2008). Does Judge Bates object to those provisions, as well? If not, why would a security cleared special advocate be any different in this regard than a security cleared private lawyer for the recipient of a section 215 production order or section 702 directive?

Not only are Bates' concerns non-specific and undermined by provisions already in place, but his disagreement with these aspects find him standing alone.

Moreover, with respect to Judge Bates's real concern–that having to provide a special advocate with access to at least some of the classified information upon which surveillance applications are based “could prompt the government not to pursue potentially valuable intelligence-gathering activities under FISA”–it’s more than a little telling that the Executive Branch nevertheless supports the Senate bill. If this was really a genuine problem (indeed, some may well think that forcing such a choice is exactly the point), wouldn’t we expect to have heard about it from the intelligence community, the Justice Department, and/or the White House?

Bates' objections to these reforms make him somewhat of an outsider, even inside his own wheelhouse. But you wouldn't know it by the phrasing Bates uses in his letters -- letters that he's been sending to various oversight entities since the beginning of the year. After making it clear he was speaking in a more limited capacity in letters sent in January and February ("...as a liaison for the Judiciary on matters concerning the Foreign Intelligence Surveillance Act"), that wording vanished from those sent later in the year. The letters Just Security covered in August saw Bates giving himself increasing prominence.

… the new letter both (1) fails to persuade in its substantive objections; and (2) only further raises the question of why Judge Bates believes he’s entitled to speak “on behalf of the Judiciary”–especially when at least two former FISA judges have expressly endorsed reforms far more aggressive than those envisaged by the Senate bill…

9th Circuit Appeals Court Chief Judge Alex Kozinski is now wondering the same thing, having had Bates' letters forwarded to him by a colleague. He has sent a letter to Patrick Leahy, the chairman of the Judiciary Subcommittee, informing him of Bates' tactics. (The letter also CC's leaders of both the Senate and House Intelligence Committees, as well as Eric Holder and Judge John Bates himself.)

I am writing in regard to a letter sent to you on August 5, 2014, by The Honorable John D. Bates, Director of the Administrative Office of the United States Courts. In that letter, Director Bates comments on legislation now pending in the Senate, namely the USA FREEDOM Act, S. 2685. In so doing, Director Bates purports to speak 'on behalf of the Judiciary,' and frequently uses the first-person-plural pronoun 'we' in stating his views. I understand 'we' to refer to the federal judiciary.

Kozinski then points to Judge Bates' January letter in which he states that these sorts of issues are usually deliberated by the Judicial Conference before presenting the federal judiciary's collective opinion. Kozinski notes that "nothing has changed" between January's more limited letter (when Bates spoke as only a FISA representative) and August (after Bates began claiming he represented the entire federal judiciary).

Kozinski finished up by pointing out that not only does Bates not speak for the whole of the judiciary, but that much of the judiciary is unlikely to back up Bates' positions. He makes it entirely clear that he won't.

The matters raised by S. 2685 and Director Bates's letters are of profound significance and merit the closest consideration. I have not, however, had an opportunity to study them and make an informed decision because, as Director Bates notes, "the [Judicial] Conference has not at this time been engaged to deliberate on them." Were the matter put before the Judicial Conference, I would certainly take the time to study it, form an opinion and cast a vote, after considering the views of my Judicial Conference colleagues. And, whatever the outcome, I'd feel bound by that decision. But, having given the matter little consideration, and having had no opportunity to deliberate with the other members of the Judicial Conference, I have serious doubts about the views expressed by Judge Bates. Insofar as Judge Bates's August 5th letter may be understood as reflecting my views, I advise the Committee that this is not so.

We'll have to see what Bates' post-Kozinski letters bring. He probably won't change his mind on FISA court reforms, but he'll likely stop claiming he speaks for the judicial branch, when he's clearly only pushing his own agenda.

from the repeating-himself dept

It seems unlikely to expect FCC boss Tom Wheeler to say much that really matters concerning the key issues the FCC is facing until the final decisions are made (and, if history is any indication, even when those decisions are made, the statements will be bland nothingness), but it's still worth noting that he recently responded to two very different letters from members of Congress. The first was a letter from a number of Senators coming out strongly in support of reclassifying internet access under Title II, basically defining it as a common carrier service, and creating real rules that prevent broadband providers from picking winners and losers. Wheeler's response could be summed up as "Yeah, we're considering it." But that's about it.

As I stated in the June 30. 2014, letter to you, our Notice proposes that the Section 706
framework set forth by the court provides us with the tools we need to adopt and implement
robust and enforceable Open Internet rules. However. the Commission is also seriously
considering moving forward to adopt rules using Title II of the Communications Act as the
foundation for our legal authority. The Notice asks specific questions about Title II. including
whether the Commission should 1) revisit its classification of Broadband Internet Access as an
information service; or 2) separately identify and classify as a telecommunications service a
service that "broadband providers . . . furnish to edge providers," as proposed by Mozilla in a
May 5. 2014, Petition filed with the agency. The Notice seeks comment on the benefits of both
Section 706 and Title II, including the benefits of one approach over the other, to ensure the
Internet remains an open platform for innovation and expression.

In other words, nothing new at all. In fact, the response is frustratingly circular. Wheeler asked for feedback on whether the FCC should reclassify, and these Senators said, "Hell yes, you should reclassify," even explaining why reclassifying is the only way for the FCC to "put truly effective open Internet rules on the books," and Wheeler's response was, "Yes, we've asked people to tell us what they think of Title II." It's a complete brush off in someways. Imagine asking your significant other what you should have for dinner, and they explain why it makes sense to have fish for dinner, and you respond with "Yes, I am asking people for options, and fish is one of them," rather than actually responding to the direct explanation as to why fish is the answer. It would be pretty obvious that you're not really paying attention and don't want fish.

The second letter comes from a bunch of Representatives in the House who idiotically flipped out over Wheeler's announced plans to preempt questionable state laws that block municipal broadband. These laws are almost always driven entirely by the big broadband companies, and local politicians have even admitted that they're just doing the bidding of folks from the big broadband providers. The letter comes from the same folks in Congress, led by Marsha Blackburn, who has already helped pass an appropriations amendment that would block Wheeler's plans.

Wheeler's response here is a bit stronger and more direct. He points out that the FCC has the authority to promote competitive broadband markets, and if that means trampling on big broadband lobbying efforts that restrict competition, that's well within the FCC's authority. He also points out that for all of Blackburn's supposed "concern" about the federal government overruling "local" governments, she doesn't seem to have a problem with state governments blatantly blocking municipal governments from doing what they want.

[M]any states have enacted laws that place a range of restrictions on
communities' ability to make their own decisions about their own future. There is reason to
believe that these laws have the effect of limiting competition in those areas, contrary to almost
two decades of bipartisan federal communications policy that is focused on encouraging
competition. I respect the important role of state governments in our federal system, but I also
know that state laws which directly conflict with critical federal laws and policy may be subject
to preemption in appropriate circumstances. I recognize that federal preemption is not a step to
be taken and must be done only after careful consideration of all relevant legal and policy
issues.

The rest of the letter is him basically repeating that there will be lots of "careful consideration" before any move is actually taken.

It's almost as if Wheeler doesn't want to reveal what he's going to do until he does it (shocking, I know). At this point, it's not worth making too much of either letter, other than noting that Wheeler is sending responses that basically repeat the same thing he's been saying all along. And that takes us back to the point that many of us have been raising about the FCC for over a decade. It does an awful lot of talking, but rarely does much of substance. The real question here is if the Wheeler FCC will stand up and do something beyond a lot of talking.